Class 11: Constitutional Law Flashcards by Patrick Davenport

Federal power is delegated from the _____, and is thus limited to certain expressly enumerated powers.
Powers not delegated to the federal government are retained by the ___ or the people.

states

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3 Branches of Federal Government

Legislative – Art I (Congress)
Executive – Art II (President)
Judicial – Art III (Courts)

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Under _______ federal courts have judicial power over all “cases and controversies” that

Arise under the Constitution, federal law or treaty (federal question jurisdiction)
Involve the United States
Arise between citizens of different states + $75K. (Diversity of Citizenship)

Article III

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Under ______ Congress has authority, and used it, to create specialized courts (bankruptcy court, tax court)

Article I

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The President has what executive powers (5 things)

Presidential appointments
Presidential pardons and commutations.
Veto powers.
Commander in Chief (War powers)
Make treaties (with Senate) or Executive Agreements (w/o Senate)

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President has _1__ days to veto bill unless Congress is already adjourned whereby __2___ = Pocket veto

1) 10

2) nonsignature

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Legislative Powers, Article I:

Congress can only make laws that relate to ________(8 different powers) or are “necessary and proper” to carry them out.

1) Regulate commerce with foreign nations and between states.
2) Spend to provide for common defense and the general welfare.
3) Coin money.
4) Establish post offices.
5) Lay and collect taxes.
6) Issue patents and copyrights.
7) Declare war.
8) Raise and support armies.

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When the president Ratified Treaties it becomes ____ Law

Federal

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When an Executive Agreement it is considered ___1__ to State law and __2__ to Federal Law

1) superior

2) inferior

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___- the Constitution, federal law and treaties take precedence over conflicting state laws.

Supremacy clause

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____- holds that state law in direct conflict with federal law (express preemption), or state law in an area where Congress intended to regulate entire area (field preemption) is preempted and thus invalid.

Preemption Doctrine

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Fed & State governments are ____ sovereigns

separate

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True/False

Criminal cases for the same conduct may be brought by State and Federal prosecutors without violating Double Jeopardy prohibition.

True

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________ - Found in Article 1, Section 8 of the Constitution, gives Congress exclusive jurisdiction to regulate commerce with foreign nations, with Indian Tribes and between states.

Commerce Clause

Commerce Clause is the most important source of federal lawmaking authority!!

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What are these 3 things?

Dormant or Negative Commerce Clause - States generally cannot make regulations that discriminate against interstate commerce (out of staters) in favor of intrastate commerce (in-staters).

State Laws with Discriminatory Intent (express discrimination in statute) Prohibited.

State Laws with Discriminatory Effect Sometimes Ok, if necessary to serve compelling state interest.

Limits on State Powers

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(Applied or Not Applied)

Certain Rights (1st and 4th Amendments, e.g.) ___1___ to the States through the 14th A.

Other Rights (parts of 5th, 7th and 8th Amendments) __2___ to the States

1) Applied

2) Not Applied

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With limited exception (13th Amendment), the Constitution only protects against ______, not against action by private individuals.

GOVERNMENT ACTION

Agencies = government
Public schools = government
Government agents = government

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Which Amendment is this?

Freedom of Speech/Expression, Press, Assembly,
Free exercise of religion; no gov’t establishment of religion

1st

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Which Amendment is this?

Right to keep and bear (most) arms (if not mentally ill or felon)

2nd

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Which Amendment is this?

Right against unreasonable gov’t searches and seizures; warrant req’t

4th

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Which Amendment is this?

No deprivation of life, liberty or property w/o due process
No double jeopardy
No Takings w/o public use and just compensation
No compulsory self-incrimination
Grand jury requirement (federal felony cases only)

5th

Which Amendment is this?

Speedy, public, impartial jury trial in criminal cases
Right to counsel; right to confront witnesses

6th

Which Amendment is this?

Jury trial in (most) civil cases (federal cases only)

7th

Which Amendment is this?

No cruel and unusual punishment; excessive bail/fines (federal only)

8th

Speech that is: - Fighting words & Incitement to imminent lawless behavior - Libel/Defamation - Obscenity - Fraud Is entirely ___

“unprotected” = ban/punishment is ok

oral/written communication, symbolic speech, and ...spending money

Speech

preventing, punishing, or compelling it. (in the context of the Right to Freedom of Speech)

Abridge

Content _____ restrictions will usually be declared unconstitutional. Content _____ restrictions - Laws that inhibit speech because of the content of that speech

based

Content _____restrictions are more likely to be upheld as constitutional (e.g., Time, Place and Manner restrictions)

neutral

Content Based Laws If in an “______” (unprotected/protected) category of speech, then: Government can ban it entirely or punish it.

unprotected

``` If in an "_______"(unprotected/protected) category of speech, then: Law is presumed unconstitutional. Strict Scrutiny (SS) usually applies, except for Commercial Speech. ```

protected

In content ____ laws, the Law must: (1) Serve a “significant” governmental interest (2) Be “Narrowly Tailored” to serve that interest (3) “Leave open alternative channels” for communicating the information.

neutral

Which Fora is this? streets, sidewalks, parks, government meeting places.

public fora Even if the law is “Content-Neutral” The Location of Speech Matters…

Which Fora is this? airports, jails, military bases, schools used after hours, courthouses, government bldgs.

Non-public fora

Which Fora is this? No 1st Am. right to access another person’s property in order to deliver your message. Can be banned entirely.

Private fora

If regulating speech in a Public Forum, the law must generally satisfy _______ at least: - be “narrowly drawn” - to achieve a “significant governmental interest” and - there must be alternative channels available.

intermediate scrutiny

If regulating speech in a Non-Public Forum, law must simply satisfy __________: - be “rationally related” - to a “legitimate government interest” and - alternative forums must be available

rational basis review

Which Unprotected Speech is this? Words that harm reputation

Defamation

Which Unprotected Speech is this? Miller Test: Material is ____if it: (i) appeals to prurient or perverted interest in sex; (ii) has no serious literary, scientific or political merit; and (iii) is offensive to the average person in the community.

Obscene

Which Unprotected Speech is this? words that are likely to make the person to whom they are addressed commit an act of violence (usually against the speaker, of course)

“Fighting Words” are not protected by the 1st Amendment and can be legally banned.

Which Unprotected Speech is this? Speech that is “clearly and presently dangerous” or advocates imminent lawless conduct can be prohibited.

Imminently Dangerous Speech Printed material that targets people to help them create bombs and become professional killers is not protected speech

*content-based regulations on truthful commercial speech must:

(1) directly and materially advance (2) a substantial government interest (3) in a way that is narrowly tailored

What type of speech is this? speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product.

Commercial Speech

*Which Amendment is this? “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” Basically, the government cannot usually enact laws that treat similarly situated individuals differently.

14th Amendment

Suspect Classifications. Which level of scrutiny is this? Basis of Distinction: Race, National Origin (citizenship, in respect of state laws discriminating against legal residents) To be upheld the law must: Be “necessary” to serve a “compelling” gov’t interest

Strict Scrutiny

Suspect Classifications. Which level of scrutiny is this? Basis of Distinction: Gender, legitimacy of birth To be upheld the law must: Be “substantially related” to an “important” government interest.

Intermediate Scrutiny

Suspect Classifications. Which level of scrutiny is this? Basis of Distinction: Any other basis of distinction (age, disability, wealth, political affiliation, criminal history, etc.) To be upheld the law must: Be “rationally related” to a “legitimate” government interest.

Rational Basis Review

Due Process Clauses of 5th and 14th ``` 5th Amendment (limits __1___ Action); 14th Amendment (limits ___2__ Action). ```

1) Fed | 2) State

______(Procedural/Substantive) Due Process: focuses on fairness of the legal proceeding. Government cannot take citizen’s life, liberty or property without fair procedures: 1) Notice 2) Opportunity to object 3) Neutral decision-maker

Procedural

______(Procedural/Substantive) Due Process: focuses on fundamental rights protected by the due process clauses

Substantive

This is a part of ____(Procedural/Substantive) Due Process: ``` Certain fundamental rights cannot be limited unless the Gov’t has a compelling interest that is being addressed in the least restrictive means possible (i.e., the law must be “necessary”): Right to travel interstate Right to marry Right to have and raise children Right to vote Right to Free speech Right to access the Courts ```

Substantive For non-fundamental rights, the Gov’t regulation only needs to be rationally related to a legitimate interest. Rationally related just means “one of several possible ways”

*_____ - Fifth Amendment prohibits state or federal governments from “taking” private property for “public use” without just compensation.

Eminent Domain Government regulations may amount to a taking of private property even if there is no physical taking (e.g., permits conditional on disproportionate exactions, eliminating all commercial use of property through development restrictions).